Gay Travel Advisory

Malaysia

Penal Code, Consolidated Version from 1998 & Film Censorship Act from 2002

Sources
  1. Text of the law is available at: http://www.agc.gov.my/agcportal/uploads/files/Publications/LOM/EN/Penal%20Code%20%5BAct%20574%5D2.pdf

Legal Code Text

Section 377A - “Any person who has sexual connection with another person by the introduction of the penis into the anus or mouth of the other person is said to commit carnal intercourse against the order of nature.”

Section 377B - “Punishment for committing carnal intercourse against the order of nature. Whoever voluntarily commits carnal intercourse against the order of nature shall be punished with imprisonment for a term which may extend to twenty years, and shall also be liable to whipping.”

Section 377D - “Any person who, in public or private, commits, or abets the commission of, or procures or attempts to procure the commission by any person of, any act of gross indecency with another person, shall be punished with imprisonment for a term which may extend to two years.”

Section 5 - “No person shall— (a) have or cause himself to have in his possession, custody, control or ownership; or (b) circulate, exhibit, distribute, display, manufacture, produce, sell or hire, any film or film-publicity material which is obscene or is otherwise against public decency. Any person who contravenes subsection (1) commits an offence and shall be liable on conviction to a fine of not less than ten thousand ringgit and not more than fifty thousand ringgit or to imprisonment for a term not exceeding five years or to both.”

ILGA Analysis & Notes

Several states in Malaysia have instated Islamic Sharia laws, applying to male and female Muslims, criminalising male/male and female/female sexual acts with up to three years imprisonment and whipping. The Sharia Penal law in the Malaysian state of Pulau Pinang confers penalties for sodomy [Liwat] and lesbian relations [Musahaqat] with fines of RM5,000.00, three years imprisonment and 6 lashes of the whip. All these penalties can be combined. Having received seven recommendations from States to decriminalise in its 2nd cycle UPR in October 2013, the Government stated (at para. 9) that matters involving lesbian, gay, bisexual, and transgender persons and adherents of other schools of Islamic thought would be handled carefully and consistent with cultural traditions, religious doctrine and societal norms, and domestic laws and regulations. In February 2015, leading opposition leader, and former Deputy Prime Minister Anwar Ibrahim was jailed for five years after losing his appeal against his conviction on sodomy charges – charges widely understood to be politically motivated. Reflecting the tone of much public utterance, on 11 September 2015, the Malaysian tourism minister, Datuk Seri Nazri Aziz, said that lesbian, gay, bisexual or transgender Malaysians would never have equal rights : see, Human Dignity Trust.

Sources
  1. Convictions for sodomy follow unfair trials, available at: http://www.amnesty.org/en/library/asset/ASA28/028/1998/en/9e941894-d9b0-11dd-af2b-b1f6023af0c5/asa280281998en.pdf
  2. See Article 25 of Enakmen Kesalahan Jenayah Syariah. Original text is available at: http://jaipp.penang.gov.my/images/pdf/enakmen_kesalahan_jenayah_syariah_neg_p_pg_1996.pdf

Federal Penal Code (1936) criminalisation is unchanged. On 9 Feb. 2024 the Federal Court struck down 16 Syariah Criminal Code provisions of Kelantan state (incl. its 'sodomy' provision) as exceeding state legislative authority -- a jurisdictional ruling, not a rights-based decriminalisation; federal Penal Code liability (up to 20 years) remains in force regardless.